Wage and Hour Division (WHD)

H-2B Program

Overview

The H-2B nonimmigrant program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States.The employment must be of a temporary nature for a limited period of time such as a one-time occurrence, seasonal need, peakload need or intermittent need. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, the State minimum wage, or local minimum wage to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.

The Wage and Hour Division has been delegated enforcement responsibility by the Department of Homeland Security effective January 18, 2009, to ensure H-2B workers are employed in compliance with H-2B labor certification requirements. The Wage and Hour Division may impose administrative remedies such as wage payments and civil money penalties against employers who violate certain H-2B provisions.

Key News

The Department of Labor Appropriations Act, 2016, Division H, Title I of Public Law 114-113 ("2016 DOL Appropriations Act"), provides that the Department of Labor ("Department") may not use any funds to enforce the definition of corresponding employment found in 20 CFR 655.5 or the three-fourths guarantee rule definition found in 20 CFR 655.20, or any reference thereto. See Sec. 113. This appropriations rider has been included in the continuing resolutions that have passed throughout FY2017 and FY2018, and the Department remains prohibited from enforcing these provisions, or any reference thereto. However, the 2016 DOL Appropriations Act and continuing resolutions did not vacate these regulatory provisions, and they remain in effect, thus imposing a legal duty on H-2B employers, even though the Department will not use any funds to enforce them until such time as the rider may be lifted.

On April 29, 2015, in response to recent court decisions that have created significant uncertainty around the H-2B temporary foreign nonagricultural worker program, the U.S. Departments of Labor and Homeland Security announced an interim final rule to reinstate and make improvements to the program and a final rule to establish the prevailing wage methodology for that program.

These rules strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available. The rules include several provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers covered by these regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations. More information is available at the Interim Final Rule Website.

Starting in 2016, agencies across the federal government must adjust their penalties for inflation each year. Below is a table that reflects the adjustments that have occurred for penalties under this statute. For more information on the penalty adjustments, go here.

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Type of Violation

Statutory Citation

CFR Citation

Maximum Civil Monetary Penalty on or before 1/23/2019

Maximum Civil Monetary Penalty on or after 1/24/2019

Violation of any provisions of section 503.16 related to wages, impermissible deductions or prohibited fees and expenses (equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker(s)).

8 USC 1184(c)(14)

29 CFR 503.23(b)

$12,383

$12,695

Violation related to termination by layoff or otherwise or refusal to employ any worker in violation of section 503.16(r), (t), or (v), within the periods described in those sections (equal to the wages that would have been earned but for the layoff or failure to hire).

8 USC 1184(c)(14)

29 CFR 503.23(c)

$12,383

$12,695

Any other violation that meets the standards described in section 503.19.